Employee guide to redundancy part 2 – consultation and selection

30 June 2021

If your employer is making redundancies, they have certain responsibilities towards employees, which include keeping them informed and ensuring that the redundancy process is fair and objective.

You may wish to read our employee guide to redundancy part 1 first.

Your right to consultation

Consultations are an opportunity for you and your employer to have a meaningful conversation about why your role may be made redundant and whether there are any alternatives to redundancy. Consultation should start happening right when redundancy proposals are being formed, so affected employees and/or their representatives have the opportunity to play a constructive part in the consultation process.

If your employer is making more than 20 roles (jobs) redundant at the same establishment within 90 days, then everyone at risk of redundancy will be entitled to a Collective Consultation. Your employer should also consult with each of the affected employees individually.

Collective Consultations will take place between your employer and a representative on behalf of the affected employees (known as a rep). This could be either a trade union rep (if the employer recognises a trade union for the affected employees or any groups of them) or an elected employee rep (if the employer has a consultative committee or the union is not recognised by the employer).

If there are more than 20 and up to 99 roles (jobs) being made redundant at the same establishment, then consultations will need to start at least 30 days before the first redundancy is made. If there are 100 roles (jobs) or more being made redundant, then the consultation will need to start at least 45 days before the first redundancy is made.

An employer must include any employees on fixed-term contracts if they are proposing to terminate their contract early on the grounds of redundancy.

During Collective Consultation, your employer will be expected to disclose certain information about the redundancies. This includes the reason for redundancies, how many redundancies they are expecting to make, who will be affected, what the redundancy selection process will look like (see below), how long the process will take (including consultations) and how redundancy pay will be calculated (if this is above the statutory redundancy pay requirement).

Your employer must also meaningfully consult with affected employees by exploring ways to avoid dismissals, reduce the number of redundancies and mitigate the effect of the redundancies.

Redundancy selection process

Your employer will need to identify the group of employees at risk of being made redundant. This is known as the “selection pool”. Your employer in most cases will then need to apply fair and objective selection criteria to those employees in the selection pool to determine which employees will be selected for redundancy.

Your employer can consider a number of factors during this selection process. These will usually include skills, qualifications, experience, work performance and whether any disciplinary action has been taken against the employee. An employer may also consider attendance records, however they should discount absences relating to a disability or pregnancy.

There are some “Protected Characteristics” which your employer cannot use to select you for redundancy. These include gender, age, race, religion, sexual orientation, marriage, disability, gender reassignment or pregnancy (see Can Your Role be Made Redundant when You are Pregnant?)

Circumstances in which a redundancy selection process may not apply would be if your employer is making all staff redundant in that location or department, or if you are the only employee performing that role.

TUPE and alternative roles

Your employer has an obligation to consider whether there is an alternative role within the business (or an associated business) that you could be offered instead of being made redundant. This is known as being offered “suitable alternative employment” and there are certain criteria that will need to be met for the role to be considered as a suitable alternative. These include how similar the new role is to your current one, the terms of the role, your skills and ability to perform the role and the pay, hours, location and status of the role.

If there is a role (job) available which would offer you suitable alternative employment and your employer does not consider you for this role then this could amount to an unfair dismissal.

It is important to note that if you turn down an offer of suitable alternative employment then you may be forfeiting your entitlement to redundancy pay.

If part of the business you are working for transfers to a new owner, merges with another business or a contractor takes over activities within the business then TUPE might apply. TUPE would mean that you would automatically become an employee of the new business owner or contractor. Your terms and conditions of employment would remain the same for a set period of time and your continuous service would be carried over. For more information see TUPE and Your Legal Rights.

What if my employer hasn’t followed the correct procedure?

If your employer does not consult with you correctly before making redundancies, then you may have an Employment Tribunal claim. This could be if your employer started the consultation process too late, if they didn’t consult with you properly or if they didn’t consult at all.

If your employer has not followed the correct consultation procedure, you and anyone else affected could also be entitled to a “Protective Award”. This is compensation which is paid to employees by an employer following their failure to engage in collective consultation.

If your employer has not followed an appropriate selection process, then the termination of your employment for redundancy could amount to unfair dismissal.

If your role has been made redundant and you feel that your employer has not followed the correct redundancy procedure, it is important to seek advice from an Employment Solicitor as soon as possible.

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